A step towards the better?

In a landmark judgment that could cleanse Parliament and assemblies of criminals, the Supreme Court on Wednesday struck down a provision in the electoral law that protects a convicted lawmaker from disqualification on the ground of pendency of appeal in higher courts.

“The only question is about the vires of section 8(4) of the Representation of the People Act (RPA) and we hold that it is ultra vires and that the disqualification takes place from the date of conviction,” a bench of justice AK Patnaik and justice SJ Mukhopadhaya said.

The court, however, said its decision would not apply to convicted MPs and MLAs who had filed their appeals in the higher courts before the pronouncement of this verdict.

The verdict seeks to remove the discrimination between an ordinary individual and an elected lawmaker, who enjoys protection under the RPA.

Under Sec 8(3) of the RPA, a person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified for that and a further six years after release.

The following sub-section 8(4) says a lawmaker cannot be disqualified for three months from the conviction, and if in that period he or she files an appeal, till its disposal by a higher court.

The Association of Democratic Reforms (ADR) and National Election Watch (NEW), a group of bodies working towards electoral reforms provided some insight into the implications of this judgement.

While data regarding exact convictions isn’t available as yet, the ADR and NEW analysed the number of sitting MPs and MLAs who have declared criminal cases against them. Of the total 4,807 sitting MPs and MLAs they analyzed, a total of 1460 or 30% had declared criminal cases against themselves, as per their sworn affidavits submitted to the Election Commission of India prior to contesting elections. Around 14% of these had serious criminal cases pending against them. Many of these however, are already in appeal in higher courts, and won’t be affected by the current judgment.

“The Jharkhand 2009 Assembly has the highest percentage of elected representatives (74%) who declared criminal cases against themselves,” stated a press note released by the ADR and NEW stating that 55 out of 74 MLAs of the Jharkhand 2009 Assembly declared criminal cases against themselves,””said a press note issued by the two bodies.

A person is disqualified for politics when a criminal act is proven, not when it is alleged. Why should then a convict be qualified only on appealing. Should one not wait until a court has passed judgment on the appeal?